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Opinions

Notice: Not all of the Judges Opinions will be made available on this site. Individual Judges have the option of specifying that all, some or none of their opinions be posted.

Judge Ben T. Barry

The court found that A.C.A. § 18-60-308 did not bar the debtor from pleading as a compulsory counterclaim an allegation of non-compliance with the AR statutory foreclosure act in a previous state court unlawful detainer action. Because she waived her compulsory counterclaim, she was now precluded from attempting to set aside the foreclosure sale by raising the issue in her bankruptcy case.

In this case, the court found that the debtors’ mobile home was a fixture based on the cancellation of title of the home and the fact that it sat on a permanent foundation. The court also overruled the debtors’ objection to the creditor’s proof of claim based on the unequivocal testimony of the debtors’ expert opinion that the creditor’s proof of claim was accurate.

The court denied the creditors’ motion to abandon commercial tort claims finding that the creditors’ security interest did not encompass the tort claims.

The court denied the debtor’s discharge based on the debtor’s deficient and inaccurate schedules and his clear attempt to not pay one of his secured creditors. Between the order for relief in the debtor’s initial skeletal chapter 13 filing and his subsequent conversion of the case to chapter 7, the debtor apparently paid many of his creditors and then failed to list those payments on his later-filed schedules because “they were no longer creditors.” The debtor also failed to disclose his business, the judgment obtained by the creditor that he attempted not to pay (despite this creditor garnishing the debtor’s bank one week prior to filing), and money in two bank accounts that he characterized as “customers’ money.” Of note, the attorney that represented the debtor in the state court action is the same attorney that filed the deficient and inaccurate schedules on behalf of the debtor.

Judge Phyllis M. Jones

Debt was nondischargeable pursuant to Section 523(a)(2)(B) where the loan was obtained through a false financial statement intended to deceive the Bank, through the Debtor's reckless disregard for the truth, on which the Bank reasonably relied. Debtor's discharge was also denied pursuant to Section 727(a)(4)(A) for his failure to list accurate income and failure to disclose his interest in a limited liability company of which he was the sole member.

Hill and Hill’s motion for summary judgment was denied as to its contemporaneous exchange for new value defense under Section 547(c)(1) (which the parties referred to as the Veldedefense). Notices did not strictly comply with the Food Security Act and therefore the Debtor purchased grain free of the Bank’s security interest, even though the Bank held an otherwise properly perfected security interest under Arkansas law. Summary judgment was granted as to the first element of Hill and Hill’s ordinary course of business defense under Section 547(c)(2), but denied as to the remaining elements under either Section 547(c)(2)(A) or (B). Summary judgment was also granted in part and denied in part as to Hill and Hill’s subsequent new value defense under Section 547(c)(4).

Judge Richard D. Taylor

Debtor failed to meet her burden of proof with respect to alleged converted items of personalty in a repossessed vehicle. The creditor's version contained sufficient and persuasive context and circumstantial corroboration.

Contractual class action waiver enforceable independent of and in conjunction with an arbitration clause based on U.S. Supreme court rulings. 
 

Application of the Sunday Rule to contractual "on or before" language.

An otherwise valid arbitration clause may not be enforceable in bankruptcy when the underlying purposes of the bankruptcy code inherently conflict with arbitration in the context of the specific dispute presented.

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